The Marriage Commissioner Hiding Behind Religious Freedom Deserves to Lose His Job…
October 20, 2009 · By Jonathan McLeod
…just like that racist dirtbag down in Louisiana.
Okay, to recap, in 2007, Orville Nichols, a marriage commissioner in Saskatchewan, lost his fight over his refusal to marry a gay couple. Tom Cerber wrote in support of Orville Nichols on this web site. Recently, a Louisiana Justice of the Peace, Keith Bardwell, refused to marry an interracial couple. Blogger Dr. Dawg noted that there was a lot of outrage by the right over the former, but silence about the latter. I responded here, but misunderstood his post. Dr. Dawg was talking about the issue of public servants not doing their jobs; I thought he was directly comparing gay marriage and interracial marriage.
First things firts, dude that doesn’t want to marry an interracial couple should be fired. I’m not even going to bother justifying that.
Contra Tom, Orville Nichols, too, deserves to lose his job. I am more sympathetic to his plight, as the nature of his job changed and ran afoul of his religious beliefs. Nonetheless, he cannot defend his refusal to execute his duties on the grounds of freedom of religion. It just doesn’t wash.
Keep in mind, we’re not talking about a minister being forced by the government to do something his faith (and, potentially, his employer) deem improper. We are not talking about someone employed in the private sector being forced by the government to act in contravention of his faith. We are talking about public servants employed to administer civil marriage unwilling to administer civil marriage.
Civil marriage is, by definition, the domain of the state. The state has the right to define this institution as it deems appropriate. In choosing to be an agent of the state, you are choosing to carry out the functions of the state. Your personal beliefs do not necessarily hold any sway over the duties associated with your employment.
Further, it is a simple fact that the demands of a workforce can change over time. It is not “fair” that the status of one’s job can change so dramatically as to force one to leave, but such is life. Mr. Nichols had no reasonable expectation to carry out his duties as he saw fit, the needs of his employer be damned. If his employer was doing something immoral in sanctioning gay marriage, Mr. Nichols should have acted responsibly and resigned rather than run to a Human Rights Commission to seek protection for his antiquated vision of what his job should be.
No one has the right to a specific job. Sure, we may have the right not to have our potential for employment unfairly hampered, but we have laws and regulations to dictate what is reasonable and what is not reasonable in our dealings with our employers. If Saskatchewan’s labour code is anything like Ontario’s, Mr. Nichols probably could have claimed constructive dismissal and walked away from his job with several weeks termination pay. (Though it would have been more fair for the government to offer a transition period for marriage commissioners to continue working while they sought other employment.)
Putting aside the issue of gay marriage, Mr. Nichols has no right to demand that the state bend to his will and to his will alone. Public policy is created by our democratic institutions, not a cantankerous marriage commissioner.
A couple of follow up points I’d like to make:
1. I only extend this argument to positions where a primary duty is the administration of civil marriage; I do not feel it should be imposed on people who have the ability to administer civil marriage, but for whom it is not a primary duty (can ship captains really marry people while they are at sea?).
2. Dr. Dawg is (implicitly) right that there seems no widespread outcry by conservatives against Mr. Nichols. One could easily describe this as a case of a bureaucrat trying to dictate public policy. Don’t conservatives usually hate that? Or does it just depend on what type of policy the bureaucrat is trying to impose on us?
If authorities hadn’t already changed the rules in several other scenarios to adapt for freedom of religion I would accept your argument. For example, no knives in school except for ceremonial daggars (sikh). No prayers in school (except they now provide a corridor where devout muslims can spread their prayer rugs), safety helmuts must be worn (unless your normal headdress is a turban). Lots more but that is enough. The only time we do not make exceptions is when the religion in question is “Christian”. Isn’t that by itself discriminatory? Just asking?
I agree with Randall above, it seems there is always an outrage when Christians assert their religious freedom. You said that since he is a government employee he should be fired because of his religious beliefs. Does that mean that eventually they’ll have to bar an entire religious group from government employment because their beliefs are not in line with liberal government policy?
“You said that since he is a government employee he should be fired because of his religious beliefs.”
Nope. That’s not the point.
He accepts a paycheque to deliver a service. If he is not willing to deliver that service, he is not entitled to the paycheque. Period.
I would not expect a Jehovah’s Witness to accept a job with the Red Cross Blood Transfusion Unit, or an orthodox Jew to applyt to Maple Leaf Foods as a Ham Taster, or a Hindu to seek employment in a slaughterhouse. But if any of them DID accept the job, I’d expect them to do it – not to tell me they couldn’t because it’s against their religion.
Jonathan:
The gay man in question selected Nichols from a list to perform the marriage. One then assumes that after this whole episode he could simply have gone to another of the commissioners on the list and had his marriage performed. Voila. Nichols doesn’t have to perform a service that offends his religion; the gay dude gets married; everyone is happy.
Hmmmmm, but this sort of accommodation is not what the left is after. Thus, the gay guy heads for the nearest human rights commission. And Dr. Dawg marshals the episode in some bizarre smear of conservative bloggers involving racists and blah blah blah. Why opt for accomodation when you can have pointless confrontation instead?
Yo Jon: Since the gay dude selected the 70-year-old Nichols from a list, couldn’t he have simply found a different commissioner to perform the marriage? Voila! Nichols doesn’t have to perform a ceremony that offends his beliefs; gay dude gets to marry; you don’t have to demand that Nichols be fired; everyone’s happy. So what’s wrong with this outcome?
Jonathan, with respect, you need to challenge why Tom’s point about accommodation (he is very clear about it), which seems plausible and workable, is not, in your view, an acceptable solution.
As far as I can tell, Tom’s view of accommodation is a great solution, especially when we need to protect and encourage our civil servants to be men of conscience.
My recent and related comment on the other thread: http://www.thepolitic.com/arch.....ent-213661
Employers are often forced by the human rights industry to change their policies to accommodate their employees on protected grounds. Surely it wouldn’t be difficult for the employer to redirect 1 percent of all marriages away from Mr Nicholls and towards more willing JPs. Doctors aren’t (yet, thank God) forced to give abortions and other controversial procedures, but are allowed to step aside to let others do it.
Basically, the Human Rights apparatus is falling over itself in its rush to contradict its own record of accommodation, in order to persecute what they see as the historical oppressor (Christians) and normalize that which is controversial.
“The only time we do not make exceptions is when the religion in question is “Christian”. Isn’t that by itself discriminatory? Just asking?”
I s’pose you’ll all be working on December 25th, then? How about Easter?
First things firts, dude that doesn’t want to marry an interracial couple should be fired.
No he shouldn’t. He should be reprimanded for failing to do his job. Only if he persists in this behaviour should his removal from his position–not necessarily by firing–be considered.
Good gawd, are you juvenile delinquents ever going to grow the fuck up and start reacting to events in the real world as mature adults.
Nathan:
Who agreed on all Christians’ behalf to trade two days of the year for endless selective state persecution?
Relatedly, this looks interesting: http://www.culturalrenewal.ca/.....dation.jpg
I’m still waiting for someone to address the issue of why someone hired to a job should be allowed to dictate to his employers, and to his clients, who he will choose to provide service to, based on his personal moral beliefs.
Alright, there’s a lot to go over, and I won’t be able to do it all at once. I’m going to respond to people in a fairly random order, but that’s more a case of what I feel I have time to address rather than any judgement on the worthiness of each comment.
All that being said, I’m going to start with Christopher.
I agree that the government (Mr. Nichols’s employer) should attempt to minimize the disruption in Mr. Nichols’s life. This could be by offering a healthy termination package, facilitating a transfer to a different position, affording Mr. Nichols some time to find a new job or some combination thereof. I don’t think it’s appropriate for someone to be allowed to not fulfill their duties as a Marriage Commissioner for as long as they want.
Robert:
Yes, the appropriate corrective process should be undertaken for someone who is unwilling to do their job. If they continue to refuse, then they should be terminated (or transferred).
Nathan, touche.
balbulican:
I guess you agree with sending the American army deserters back forthwith…
Randall,
I don’t think your analogies are apt. In our situation we are talking about the administration of civil marriage by public servants. Agents of the government tasked with enacting the policy of the government should be expected to do that. The examples you cite do not correlate.
Mathai,
Your comment is either intellectually shallow or intentionally misrepresenting my post. I never suggested that someone should be fired for their religious beliefs.
balbulican,
Yup, that’s pretty much it (regarding both your posts).
Mr. Nichols was willing to do his job for heterosexual couples; he wasn’t avoiding his job. Undoubtedly there are Marriage Commissioners in his area that would be willing to marry a same-sex couple.
I’m not even sure that being a Marriage Commissioner is a full-time job, is it?
If reasonable accommodation is easily workable, why not do it? Everyone should have no complaints. Mr. Nichols marries the couples that are one man and one woman. The same-sex couples can get married by a commissioner that is ready and willing to serve them. … Tom Cerber’s solution is win-win.
There’s simply no need for a heavy handed solution.
Balbulican wants to equate government with every other employer. The government is not just any other employer and those who work for the Crown are not just employees, they are civil servants. And in a great county, in one of the world’s oldest democracies, we should welcome the accommodation of different constituencies with the civil service, when at all possible.
At one level, isn’t this what affirmative action is all about?
Scary,
I’m not a fan of Human Rights Commissions or Tribunals. I imply as much in the post. However, any indefensible acts by such institutions doesn’t give Mr. Nichols the right to dictate the terms of his employment.
Christopher,
I think we’re just going to disagree about what constitutes the duty of a marriage commissioner, as well as disagree on the appropriate method of accommodation for people in a position similar to Mr. Nichols’s. I won’t repeat myself in this response. I’ve made my case for why he I don’t think he should be allowed to pick and choose those whom he serves.
I’ll keep monitoring all the comments on this post, but if new ground isn’t covered, I’ll refrain from commenting anymore, lest I bore you all even more than I already have.
What I want to know is, where is Charles Anthony? Shouldn’t we all just agree that marriage commissioners should be privatized and then they can decide whom they will serve? :)
Awesome.
Three cheers for privatizing marriage commissioners!
Might just have to open myself a quicky chapel. Make a few extra bucks.
The government should not be in the business of rubber stamping marriages anyway.
As long as people can not shake their irresponsibly instinctual expectation that the government should be in the business of recognizing and recording marriages, there is no reason to expect any of this nonsense to be anything more than a frustrating waste of taxes.
Jonathon:
As much as it irks me, I do agree with the decision on Nicholls; I just think it is “one rule for me, another for thee” as other religions have forced considerable accommodations on public and even private businesses.
Can government then describe itself as an equal opportunity employer?
Scary:
“balbulican: I guess you agree with sending the American army deserters back forthwith…”
Absolutely, if they understood what was in the employment contract, and if their employer is abiding by its terms.
Christopher:
“Mr. Nichols was willing to do his job for heterosexual couples; he wasn’t avoiding his job.”
Nope. His job is not to provide service to people whose sexual preference he approves of. It is to provide service.
“And in a great county, in one of the world’s oldest democracies, we should welcome the accommodation of different constituencies with the civil service, when at all possible”
I hope you’re typing that tongue in cheek. It is not our job as citizens to win the approval of civil servants so that they deign to provide us service. If this bureaucrat decides he won’t provide service to a couple entitled under law to it, he needs to quit.
Balbulican: “Absolutely, if they understood what was in the employment contract, and if their employer is abiding by its terms.”
Something tells me that upon Nicholls signing his contract, the understanding between himself and his employer was that only heterosexual marriages would be performed. The employer changed the contract, while Nicholls is still abiding by the original terms and definitions. Is this not a breach of contract by the government?
It’s not like Nicholl’s is a paramedic, refusing his services to homosexuals at death’s door. He’s a marriage commissioner. As I write above, I’m not even sure being a marriage commissioner is a full time job.
Nicholl’s is still willing to provide a service. Theirs simply no need for the government, as his employer, to demand that he provide that service in scenarios where he may have a moral objection. THERE ARE a plurality of marriage commissioners, many of whom would be willing to provide said service for same-sex couples.
If this was not the case, I would be more willing to concede your point. And in situations where this is the case, then I do concede your point.
But in a free society, accommodation, especially within the ranks of government, is worthwhile. Canada has a long history of it. We let Sikh’s wear their turbans in the RCMP. The crown, and other “employers,” make exceptions for their employees all the time.
Consider the whole notion of “paternity leave,” where a father, who isn’t even essential to the birthing or caring for an infant (in most cases), is given time off with pay to help out around the home. It’s accommodation, and many employers, for whatever reason, see it as worthwhile.
There’s something to be said for Robert McClelland’s point about reacting like an adult; choosing one’s battles wisely and not making a mountain out of a mole hill.
Demanding that Mr. Nicholl’s either be willing to perform same-sex marriages or quit is job is simply not necessary. Tom Cerber’s solution is much better, easily workable, and everyone wins.
Who’s losing out by working toward accommodation in this case?
Christopher, I can sympathize with accommodation but only to a certain extent. Accommodation where it does not change the nature of your duties or the job you were hired to carry out so long as you are able to carry out all your duties at all times is accommodation I can live with. Accommodation where your moral conditions are challenged or defied is not inherently the responsibility of an employer to resolve. If the job changes and you feel you can not perform that job to it’s full extent under the new conditions, then the problem is yours and it’s up to you to figure out how to resolve your problem. The company/business may decide to assist, but they should not be compelled to.
I noticed that you’d concede in situations where that is the case. The problem is the other part. It creates a double standard in what should otherwise be a fair and level playing field. While I agree that certain situations could and should be considered locally, it should never become policy. A question I would have would be: were there actually any other people who might deliver this service as this man was put in a position to “have” to refuse? If this is, as you said “the case”, then this is where the issue lies in that he could no longer perform the services he was hired to do.
You also cite the example of the RCMP with the complaint about wearing the turban. I wholly and completely disagree with this accommodation. First, the man who applied for the job knew that this would be a requirement of the job: the uniform. Second, by accepting the job offer when it was given, he accepted and agreed to the dress code. As he obviously did not agree to that particular element, he accepted the job and the conditions of the job under false pretenses. He likely figured (correctly it seems) that he would change the system once he got in, given that it would be very difficult to get rid of him once he became an employee, in which case, he never should have been hired in the first place. Even if he had a “change of faith” after accepting the job where his faith challenged the requirements of his job, it would have been incumbent upon him to resign his commission as an RCMP officer because his decision became the source of the conflict.
“balbulican: I guess you agree with sending the American army deserters back forthwith…”
Absolutely, if they understood what was in the employment contract, and if their employer is abiding by its terms.
Balb, whether you take this view or not, it’s irrelevant to the subject at hand. Scary has produced a red herring.
If you want to be consistent, deserters are doing just what the JP and the marriage commissioner should be doing–quitting because they can’t, or don’t want to, carry out the full range of their duties.
I just heard on the news that the Louisiana JP is an elected official. That, in a significant respect, renders comparison with him rather moot.
Sean, I think law-makers (be they legislators or judges :-b) should be very careful before compelling any private enterprise to accommodate it’s employees. Free enterprise should not be unduly regulated, but that’s another matter.
However, as I write above, a civil servant is not just any employee because he is not working for a private enterprise, rather, he is working directly or indirectly for the Crown.
I will concede that a marriage commissioner such as Mr. Nichols would not be suitable in an area where the services of only one marriage commissioner were needed, and, therefore, it is very likely that a same-sex couple will be denied the services to which they are entitled.
However, as I understand, Nichols was in a heavily populated area, where there are a plurality of marriage commissioners, and BEING a marriage commissioner is not exactly an emergency service. Again, I’m not even sure it’s a full time job.
Tom Cerber’s solution to this impass is certainly workable, accommodative, and everyone wins.
What’s the big deal?
Pragmatic solutions, generally, strive to avoid making mountains out of mole hills. And our civil service has a long history of accommodation in areas of service that are certainly more essential than being a marriage commissioner.
The case of the RCMP welcoming turban clad officers is a perfect example. I don’t have a problem with Canadian police officers wearing a turban, as long as said turban still meets some standard of dress code.
So what if the first officer to wear a turban joined the service thinking he could change the dress code?
Good for him. He succeeded. He still looks sharp in his uniform.
It’s a compromise that seems to work. I don’t know any turban wearing police officers myself, but I have no reason to believe them any less competent than the next guy. … They might have to fasten their turban with super glue so it doesn’t endanger their life in a scuffle, or find some other solution to that problem, but as long as there is a solution, why not let them wear turbans?
NOW, allow me to be clear, I detest the incoherent ideology of multiculturalism. Accommodation, however, is not about encouraging a “multicultural community,” it’s about enabling one’s freedom of religion and conscience by finding pragmatic solutions to impasses between individual dignity and general rules of conduct.
Quite apart of the claptrap of multiculturalism, consider that in the Indian subcontinent, turban wearing scarlet jacketed officers were considered an expression of smart colonial policy on the part of the British Raj.
For Canada’s sake, accommodation is good policy because we need men of conscience to serve this country in whatever capacity that they can; having men of conscience within the state apparatus limits the ability of the state to act inhumanely.
In the case at hand, Nicholls would undoubtedly have had many couples who are not of the same sex that he could marry.
How can you be so sure that he wanted to be allowed to dictate anything to his employers?
Maybe he wanted publicity to draw attention to the astounding stupidity of having the government in the business of registering such fickle social relationships.
“Balb, whether you take this view or not, it’s irrelevant to the subject at hand. Scary has produced a red herring.”
I don’t mind a little herring.
“If you want to be consistent, deserters are doing just what the JP and the marriage commissioner should be doing–quitting because they can’t, or don’t want to, carry out the full range of their duties.”
Not quite right. Their “employment contract” includes provision for a soldier’s decision to unilaterally terminate his/her service – charges for desertion. I would applaud as a hero anyone who refused to serve and accepted their incarceration as a conchie. I also have some sympathy for those who desert because the forces have failed in some significant way to live up to their terms of the agreement, as I suggest in my response.
” How can you be so sure that he wanted to be allowed to dictate anything to his employers? Maybe he wanted publicity to draw attention to the astounding stupidity of having the government in the business of registering such fickle social relationships.”
In which case he has succeeded wonderfully well, and his immediate dismissal will simply make the pyre of his theatrical self-martyrdom burn even more brightly.
Charles is soooo single.
Kidding aside, you’d have to pull the government out of many things if they were to no longer have a hand in registering marriages. To be married has implications for taxation, immigration, estate planning, liability etc etc.
Take away their ability to oversee marriage and they’ll lose their control over too many aspects.
Of course, in a perfect world, everything would be deregulated like hydro1 and wall street.
I’d prefer we get off the police-officers-allowed-to-wear-turbans analogy. Cops aren’t hired to wear specific headgear. Marriage commissioners are hired, I’m assuming, to commission marriages.
I don’t think we can accurately equate a job’s dress code with a job’s duties.
You are right, cops aren’t hired to wear specific head gear, as, say, a fashion model would be so hired. However, they are hired to wear a uniform in the exercise of their authority. And asking for an exception to the rule with respect to wearing that uniform is a matter of conscience.
I think we agree that getting the government out of the business of commissioning marriages might be a better solution.
However, given Nicholl’s situation and a plurality of marriage commissioners, there is yet to be one rock solid argument against accommodating him; one dispensing of Tom Cerber’s solution as the best solution for this circumstance.
Maybe the true difference of opinion in this matter stems from differing notions of where sovereignty, or loyalty to the state, rightly belongs. Maybe accommodation is easier to realize when sovereignty is rested in a constitutional monarch and not “we the people,” which is generally vague and secular.
The Canadian state is not a secular one.